Methylone and MDMA/Ecstasy

FEDERAL DEFENDER SENTENCING GUIDELINES COMMITTEE Lyric Office Centre 440 Louisiana Street, Suite 1350 Houston, Texas 77002-1634 Chair: Marjorie Meyers Phone: 713.718.4600 August 7, 2017 Honorable William H. Pryor, Jr. Acting Chair United States Sentencing Commission One Columbus Circle, N.E. Suite 2-500, South Lobby Washington, D.C. 20002-8002 Re: Public Comment on MDMA/Methylone/Synthetic Cathinones Dear Judge Pryor: This letter offers the comments of the Federal Defender Sentencing Guideline Committee on issues related to MDMA/Ecstasy, methylone, and synthetic cathinones. We appreciate that the Commission is revisiting the marihuana equivalency ratio for MDMA and the typical dosage weight, along with methylone and other synthetic cathinones. We incorporate by reference our March 2017 letter to the Commission, which offered many comments to the Commission on the issues the Commission is currently considering and included transcripts and declarations from experts involved in litigating these drugs.1 The remainder of this letter offers additional comments encouraging the Commission to (1) revisit the method it uses to measures drug harms; (2) lower the ratio for MDMA; (3) set a marihuana equivalency ratio no higher than 1:100 for methylone and several other synthetic cathinones; and (4) change the typical weight per unit of MDMA, which takes into account the lowest common dosage rate. I. The Commission’s Study of Drug Offenses As the Commission undertakes its multi-year study of MDMA/Ecstasy, synthetic cathinones, and synthetic cannabinoids, Defenders highly recommend that it apply a well-defined, consistent harm-based rationale to drug sentencing, while also addressing gaps in the research. 1 Letter from Marjorie Meyers, Chair, Federal Defender Sentencing Guidelines Committee, to the Honorable William Pryor, Jr., U.S. Sentencing Comm’n 2-4 (Mar. 10, 2017) (Meyers Letter Mar. 2017). Honorable William H. Pryor, Jr. August 7, 2017 Page 2 A. The Commission’s Theory Behind Drug Sentencing Should be Well Articulated and Consistently Applied. Defenders have previously noted difficulty commenting on proposed changes to drug sentencing without an explanation from the Commission of how the guideline, and particularly the Drug Quantity Table (DQT), is intended to achieve the purposes of sentencing.2 We believe it is important for the Commission to adopt and consistently apply some theory of drug sentencing. Once articulated, judges can use the rationale when considering and applying the guidelines. Other stakeholders can use the rationale when evaluating and commenting upon proposed changes. And the Commission can use it to guide policy making, and to help ensure that the guidelines achieve the purposes of sentencing. Without such a theory, the guidelines are more vulnerable to piecemeal decision making by Congress and the Commission, which often creates anomalies, disproportionalities, and unjustified disparities among recommended sentences for different drugs. B. The Commission’s Analysis of Drug Types and Determining Drug Equivalency Should Focus on Direct Harms Rather than Ancillary Harms Associated with Trafficking. The Commission has requested comment on a number of issues, including distribution and usage patterns and other matters, as well the health effects of the controlled substances under consideration and how their harms compare with those of other drugs. It also has stated that it “anticipates that its work will continue to be guided by the factors the Commission traditionally considered when determining marihuana equivalencies for specific controlled substances, including their chemical structure, pharmacological effects, legislative and scheduling history, potential for addiction and abuse, the pattern of abuse and harms associated with their abuse, and the patterns of trafficking and harms associated with their trafficking.” At the same time, the Commission explicitly asks how it should assess the harms of MDMA relative to those of other controlled substances. We noted in previous comments that a harms-based analysis might provide a workable rationale for proportionate drug sentencing. When establishing quantity thresholds in the DQT, and the drug equivalencies in Application Note 8, we encouraged the Commission to focus on direct harms caused by the drugs themselves. Comparing one drug to other controlled dangerous substances on all of the criteria the Commission has included in its request for comment will likely result in inconsistent, subjective assessments of the harms associated with a particular drug, especially since the Commission has never adopted a standard methodology for consideration of those factors. Nor should actual patterns of trafficking and harms associated with the trafficking of a particular drug be used to determine the appropriate marihuana 2 Id. at 2-4. Honorable William H. Pryor, Jr. August 7, 2017 Page 3 equivalency. Such patterns and ancillary harms are already addressed in the many specific offense characteristics found in the guidelines.3 C. Addressing Gaps in the Research Regardless of the theory of sentencing adopted, the available research is likely to fall short of what is ideally needed to write guidelines implementing the theory. Contemporaneous observers of the legislative history of the Anti-Drug Abuse Act of 1986 noted that Congress made serious mistakes in establishing the quantity thresholds in the penalty statutes.4 Data may not be available; some preliminary research may turn out to be mistaken or there may be a lack of consensus in the scientific community. For example, we are not aware of data on what quantities of various drugs are reliably associated with “major” versus “serious” traffickers. And scientists have already disagreed on the effects of MDMA.5 Even if the Commission is dissatisfied with the research currently available on the comparative harms of the drugs currently under consideration, it needs to try to synthesize the available data. It failed to do this in 2001 when it established the marihuana equivalency for MDMA, opting to dismiss criticisms of certain studies that exaggerated the toxic effects of MDMA.6 3 See, e.g., USSG §2D1.1(a) (setting base offense levels when death or serious bodily injury resulted from the use of the substance; §2D1.1(b)(1) (offense level increase for possession of a dangerous weapon); §2D1.1(b)(2) (increase in offense level for using, threatening, or directing the use of violence); §2D1.1(b)(3) (increased offense level and offense level floor for certain importations and exportations); §2D1.1((b)(6) (distribution through mass-marketing by means of an interactive computer service). See also §2D1.2 (increased offense levels for drug offense occurring near protected locations or involving underage or pregnant individuals). 4 See Mandatory Minimum Sentencing Laws – The Issues: Hearing Before the Subcomm. on Crime Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong., 1st Sess., at 166, 169- 70 (June 26, 2007) (statement of Eric Sterling). Mr. Sterling has described the legislative process as “like an auction house . It was this frenzied, panic atmosphere – I’ll see you five years and raise your five years. It was the crassest political poker game.” Michael Isikoff & Tracy Thompson, Getting Too Tough on Drugs: Draconian Sentences Hurt Small Offenders More Than Kingpins, Wash. Post, Nov. 4, 1990, at C1, C2. 5 See, e.g., Rick Doblin, et al., A Reconsideration and Response to Parrott AC (2013) Human Psychobiology of MDMA or ‘Ecstasy: An Overview of 25 Years of Empirical Research, 29 Human Psychopharmacology Clinical and Experimental 105-108 (Mar. 2014) (discussing how Dr. Parrott’s review of the literature on MDMA/ecstasy was inaccurate and failed “to address the central controversies in the literature”). 6 USSC, Report to the Congress: MDMA Drug Offenses, Explanation of Recent Guideline Amendments, at 8, n.15 (2001) (MDMA Report). Honorable William H. Pryor, Jr. August 7, 2017 Page 4 The solution is for the Commission to make the best use of the available research, erring on the side of lenity. This approach is consistent with the overriding statutory mandate that sentencing courts impose a sentence sufficient, but not greater than necessary. 18 U.S.C. § 3553(a). It will also avoid guideline amendments that call for an unwarranted deprivation of liberty, particularly given the strong data showing that severe sentences will not promote deterrence7 and that less severe sentences will help satisfy the Commission’s obligation to assure that the guidelines meet the purposes of sentencing8 and control the prison population.9 D. Addressing Unavoidable Imprecision in the Guidelines Even with adequate research, vagaries in the real world—in matters such as the purity of different batches of drugs and the amounts that constitute typical doses—will ensure that no set of guidelines will lead to the right recommendation in every possible case. This is why it is so important for the Commission to articulate the assumptions underlying its decisions and the rationale for the guidelines, i.e. how they are intended to achieve the purposes of sentencing. Armed with that kind of understanding—for example, why the Commission expected the typical weight of a dose of MDMA to be 250 mg—judges and advocates can recognize when those expectations are not met in a particular case and weigh and adjust the guidelines’ recommendation accordingly. Vagaries such as these are already recognized in the guidelines, but in a limited and unbalanced

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